Opinion
02 Cr. 939 (DC), 04 Civ. 9445 (DC).
June 7, 2005
DAVID N. KELLEY, ESQ., United States Attorney for the Southern District of New York, By: Laura Grossfield Birger, Esq. Assistant United States Attorney, New York, NY.
Ms. MARISA HICKS, Defendant Pro Se, FCI Danbury, Danbury, CT.
MEMORANDUM DECISION
Defendant Marisa Hicks moves to vacate, set aside, or correct her sentence pursuant to 28 U.S.C § 2255 on the basis that the evidence was insufficient to sustain her conviction for aiding and abetting an armed bank robbery. For the reasons set forth below, the motion is denied.
Because I find that "[i]t plainly appears from the face of the [§ 2255] motion and . . . the prior proceedings in the case that [Hicks] is not entitled to relief," I do not order the United States Attorney to file a response to the motion. See Rules Governing § 2255 Proceedings for the U.S. Dist. Courts 4(b); Armienti v. United States, 234 F.3d 820, 822-23 (2d Cir. 2000).
BACKGROUND
A. The FactsOn July 6, 2002, two men robbed the First Union National Bank in Yonkers. They were armed with guns and wore black outfits, including black masks and gloves. They threatened to shoot and kill the employees and customers of the bank, and they pushed an elderly woman to the floor. They escaped with two bags filled with $35,000 in cash. They fled in a car they had stolen earlier that day, and a high-speed chase ensued on the Major Deegan Thruway. Shots were fired. Eventually, their car crashed in the Bronx and one of the two men was shot to death in a shootout with the police. The second man escaped, but was arrested several days later. See United States v. White, 301 F. Supp. 2d 289, 290-91 (S.D.N.Y. 2004).
During the robbery, Hicks was sitting outside the bank in a car with her cousin, Marlo White. Hicks's baby was in the backseat. Hicks was on a cell phone with one of the two men — her former husband, Vernon Snype — as the bank robbery unfolded. Hicks and White were supposed to alert Snype if police officers appeared. As Hicks was on the phone with Snype, she told White that people were screaming in the bank. Hicks and White did not leave, but continued to act as look-outs. Id. at 291.
B. Prior Proceedings
By letter dated September 11, 2003 and signed by Hicks and her lawyer on September 17, 2003, Hicks entered into a plea agreement with the government. (9/11/03 Letter at 1; Plea. Tr. 12-13). The plea agreement confirmed that Hicks would be pleading guilty to Counts One and Three of the indictment, which charged her respectively with conspiracy to commit bank robbery in violation of 18 U.S.C. § 371 and armed bank robbery in violation of 18 U.S.C. § 2113(d). Hicks and the government stipulated to an offense level of 25, a criminal history category of I, and a sentencing range of 57 to 71 months imprisonment. (9/11/03 Letter at 2-3). The plea agreement permitted Hicks to move for a downward departure based on extraordinary family circumstances. (Id. at 3). The plea agreement also contained a waiver of Hicks's right to appeal or otherwise challenge (under 28 U.S.C. § 2255 or otherwise) any sentence within or below the stipulated sentencing range of 57 to 71 months. (Id. at 4).
On September 17, 2003, Hicks pled guilty pursuant to the plea agreement before Magistrate Judge Frank Maas. Before accepting the plea, Judge Maas conducted a thorough allocution, which included the following colloquy:
THE COURT: And did you, in fact, commit these two crimes?
THE DEFENDANT: Yes.
THE COURT: Okay. What I'd like to do is take them in reverse order and start with count three which charges you with assisting others in the course of an armed robbery in July of last year. Can you tell me what you did that makes you guilty of this crime?
THE DEFENDANT: I agreed to be a look-out.
. . .
THE COURT: And did you serve as a look-out for other people who went into the First Union Bank?
THE DEFENDANT: Yes.
THE COURT: And did that happen sometime in the summer of 2002?
THE DEFENDANT: Yes.
THE COURT: Where was the bank located?
THE DEFENDANT: Yonkers.
THE COURT: And who went into the bank?
THE DEFENDANT: My husband and his friend.
THE COURT: Okay. And what is your husband's name?
THE DEFENDANT: Vernon Snype.
THE COURT: And was one of the people who went into the bank, one or more of the people, carrying some firearm?
THE DEFENDANT: Yes.
THE COURT: What kind of firearm was that?
THE DEFENDANT: I don't know.
THE COURT: Do you know whether it was a handgun or something larger?
THE DEFENDANT: I didn't see it.
THE COURT: Okay. You understood that the people going into the bank intended to rob it?
THE DEFENDANT: After a conversation with him, I knew that he was robbing a bank.
(Plea Tr. 14-15). At that point, counsel interjected and stated that Hicks's "position" was that although she knew that she was acting as a look-out for a crime, she did not know "precisely the crime." (Id. 15-16). Counsel reported that while the robbery was taking place, Hicks was on the phone with her husband while he was robbing the bank and that during the conversation she learned it was a bank robbery. (Id. 16). Counsel stated: "[Hicks] knew they were in the bank. She was on the phone with him at the time. She had actual knowledge they were inside the bank, that actual bank." (Id.). Hicks confirmed that she was on the phone so that she could alert the people inside the bank if the police arrived. (Id.). Hicks also stated that at the time she did not know that her husband had a firearm, but she knew that he carried weapons. (Id. 16-17). Counsel confirmed that Hicks "knew guns were being used," and Hicks acknowledged that "[a]s events were unfolding that day," she came to understand that firearms were being used by the bank robbers. (Id. 18-19).
On February 11, 2004, I sentenced Hicks. I downwardly departed from the guidelines range based on Hicks's extraordinary family circumstances and imposed a sentence of 36 months imprisonment. (Sent. Tr. 13-14). At sentencing, I found that more likely than not Hicks knew in advance that this was going to be a bank robbery and that she was involved in the planning. (Id. 5). Indeed, telephone records showed that on the day of the robbery Hicks had 51 telephone calls with Snype and 25 telephone conversations with White. (Id.).
Hicks did not appeal. On December 2, 2004, Hicks filed the present motion under 28 U.S.C. § 2255 seeking to vacate, set aside, or correct her sentence. She argues a single ground: the record contains insufficient evidence to show that she had prior knowledge that guns were going to be used in the bank robbery. She does not appear to be challenging her conviction on count one for conspiracy to commit bank robbery.
In related proceedings, White also pled guilty and was sentenced to 30 months imprisonment, as I granted her motion for a downward departure for extraordinary family circumstances as well. Snype went to trial and was convicted of conspiracy to commit bank robbery. He was sentenced to life imprisonment.
DISCUSSION
Hicks's motion is denied. First, she has waived her right to challenge her sentence, whether by a motion under § 2255 or otherwise. Second, even assuming she is not precluded from challenging her sentence, the motion must be denied on the merits.
A. Waiver of Right to File a § 2255 Motion
Hicks's arguments are foreclosed by her plea agreement, for she explicitly agreed that she would "neither appeal, nor otherwise litigate under Title 28, United States Code, Section 2255, any sentence within or below the stipulated sentencing range." (9/11/03 Letter at 4). As the Second Circuit has held,
In no circumstance . . . may a defendant, who has secured the benefits of a plea agreement and knowingly and voluntarily waived the right to appeal a certain sentence, then appeal the merits of a sentence conforming to the agreement. Such a remedy would render the plea bargaining process and the resulting agreement meaningless.United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir. 1993); see also United States v. Djelevic, 161 F.3d 104, 106-07 (2d Cir. 1998) (upholding plea agreement waiver provision). Because Hicks does not challenge the validity of her plea agreement, and I sentenced her below the stipulated range, she has waived her right to bring this motion.
The Second Circuit has also held, however, that "a waiver of appellate or collateral attack rights does not foreclose an attack on the validity of the process by which the waiver has been procured, here, the plea agreement." Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 195 (2d Cir. 2002) (citing United States v. Hernandez, 242 F.3d 110, 113-14 (2d Cir. 2001) (per curiam)). Accordingly, the district court may hear claims challenging the constitutionality of the process.See Frederick, 308 F.3d at 196. A valid guilty plea must "represent a voluntary and intelligent choice among the alternative courses of action open to the defendant." Ventura v. Meachum, 957 F.2d 1048, 1058 (2d Cir. 1992) (quotation marks and citation omitted).
Here, Hicks makes no allegations of coercion or duress or misrepresentation with respect to her decision to enter into the plea agreement. She was represented by experienced and competent counsel. The magistrate judge conducted a thorough allocution, and Hicks pled guilty — and waived her right to file a § 2255 motion — knowingly, intelligently, and voluntarily. Accordingly, the waiver will be enforced and the motion is denied as barred by the plea agreement.
B. The Merits
Even assuming I were to reach the merits, the motion would be denied as well, for on the merits Hicks is not entitled to relief. The record more than adequately demonstrates that Hicks was guilty of aiding and abetting an armed bank robbery.
First, Hicks pled guilty to armed bank robbery. Count three of the indictment charged armed bank robbery. Her plea agreement referred specifically to armed bank robbery. At her plea allocution she was specifically advised that count three charged armed bank robbery. (Plea Tr. 6-7, 8-9).
Second, Hicks conceded the essential facts during her plea allocution. She admitted that she agreed to be a lookout for her husband. Although she contended that she did not know in advance that this was going to be a bank robbery and that guns were going to be used, she admitted that as the events were unfolding she learned that her husband was robbing a bank and that guns were being used. Still, she continued to act as a look-out. Hence, even assuming she did not have advance knowledge, she continued to act as a look-out after she learned that this was an armed bank robbery. See United States v. James, 998 F.2d 74, 81-82 (2d Cir. 1993) (finding it was indisputable that defendant knew his co-defendant had a gun during escape phase of robbery and because robbery itself continues through escape phase, evidence was sufficient to support conviction for armed robbery as opposed to simple robbery).
Third, even assuming that Hicks did not know in advance that guns were going to be used, it was reasonably foreseeable to her that they would be. See United States v. Grubczak, 793 F.2d 458, 463 (2d Cir. 1986) ("the government need not necessarily show the defendant actually knew a dangerous weapon would be used; rather, all that need be demonstrated is that the defendant `was on notice of the likelihood of its use'") (quoting United States v. Sanborn, 563 F.2d 488, 491 (1st Cir. 1977)). She had agreed to be a look-out. Her car was parked "close outside the bank." (Plea Tr. 16). She had agreed to be on the phone so that she could alert her former husband if the police arrived. (Id.). She knew that her former husband had a history of carrying weapons. (Id.). Clearly she knew in advance, at a minimum, that her former husband was likely to be carrying a weapon during the robbery. Yet she agreed to assist him.
Accordingly, the record shows, based on the admitted or indisputable facts, that Hicks was guilty of aiding and abetting an armed bank robbery.
CONCLUSION
For the reasons set forth above, Hicks has failed to demonstrate any basis for relief under 28 U.S.C. § 2255. Accordingly, the motion is denied. Because she has not made a substantial showing of the denial of a constitutional right, I decline to issue a certificate of appealability. See 28 U.S.C. § 2253 (1996) (as amended by the Antiterrorism and Effective Death Penalty Act). I certify pursuant to 28 U.S.C. § 1915(a)(3) that any appeal taken from this decision and order would not be taken in good faith.
The Clerk of the Court shall close this case.
SO ORDERED.